UNLAWFUL EVICTION ..............

Two months ago we removed a really unpleasant tenant from our flat who was not paying her rent and partying every night.  We have now received a solicitor’s letter claiming illegal eviction and seeking substantial compensation.  Surely we are in the right to take our property back if the tenant does not pay her rent?

It is very difficult to answer your question without seeing the means by which you regained possession of your property.  If you have not followed the right legal process and carried out an unlawful eviction then the tenant is quite within her rights to seek damages from you. Whether justified or not unlawful eviction is a serious and potentially very expensive action if carried out by a Landlord to remove tenants.

Two recent English court cases demonstrate the danger of evicting tenants without due process of law.  In Pillai v Amendra, the tenant, Mr Pillai refused to move to alternative accommodation for two weeks to enable the Landlord to defeat a Housing Benefit fraud investigation. The tenant returned from holiday to find himself locked out and his possessions in the front garden.  He secured re-entry with the help of the police but then was locked out again and his possessions removed once more to the garden.  Unlawful eviction was found and total damages of £36.000 were awarded.

In Dimoutsikou v Penrose the tenant, Ms Dimoutsikou, returned from holiday to find that the Landlord had changed the locks, even though she was not in arrears with her rent.  The Landlord refused to readmit the claimant despite intervention by solicitors.  The court awarded total damages of £8000 plus £100 for the return of the surety deposit.

In both cases unlawful precipitous action resulted in high penalties for the Landlord.  It is true that a lawful eviction is not a quick and cheap process, however is it the only correct way of regaining your property.  Much depends on applying the right process at the right time.  Tenant harassment and physical eviction without a court order is not an option. 

Under the Housing (Scotland) Act 1988 there is a specific process to achieve a legal repossession.  The Landlord must serve on the tenant a Notice to Quit using the correct wording and giving the correct dates of recovery.  A Landlord is also advised to serve a Form AT6, Notice under Section 19 of Intention to Raise Proceedings for Possession, two months prior to the desired repossession date.  This Notice sets out the reasons under which the Landlord seeks repossession.  This may be the end of the six month lease (the minimum period under a Short Assured Tenancy), or sooner under specific Mandatory or Discretionary Grounds as set out by the Act.

To be successful in a court action for re-possession the Landlord has to show that the reason for evicting the tenant is reasonable and legal.  Legal technicalities such as the incorrect wording on a Notice, incorrect method of serving Notice, incorrect or missing clauses in a lease, illegal or unreasonable actions by the Landlord and so on, can all add considerable cost and loss of time for a Landlord.

Eviction is an expensive and time-consuming business, even when all the paperwork is right. In future we recommend using a professional Letting Agent such as Key-Lets and avoid the pitfalls of bad tenants in the first place.